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Commercial appearance: definition and consumer properties
Commercial appearance: definition and consumer properties
Anonim

Surely this happened to many: you really liked the item in the store, you paid for the purchase, it was packed. But already at home, having opened the package, you found that the thing is not as good as it seemed at the beginning. The color, dimensions of the product do not suit you, do not satisfy its characteristics. What to do in this case?

If at the same time the purchase is fully functional, 100% usable, but does not suit you, you have every right to return it back. That's what consumer law says. You can return the item that did not suit you within two weeks from the date of purchase.

But in practice this right is not implemented so smoothly. The goods may not be accepted from you for one single reason - a violation of the presentation. But what is included in this concept? What is generally considered a "trademark"? How can it be broken? We will answer these and other important questions on the topic in the article.

Legislative provision

First, let's find out what is said about the presentation in Russian legislation. Let's turn to Art. 25 FZ "On the protection of rightsconsumers". It says that the buyer can exchange a non-food purchase of inadequate quality for a similar product. In case the purchase did not suit him in size, shape, equipment, color, style or size.

According to the Federal Law, such a right is reserved for the buyer within 14 days from the date of purchase. But to make an exchange is possible only in the following cases:

  • Product, product was not used.
  • The trade dress of the purchase and all accompanying consumer properties have been preserved.
  • Labels, factory seals and labels have not been torn off the product.

If we turn to Art. 26.1 of the same Federal Law, we will also see an extended effect of this right: on the same grounds, the buyer can also demand the return of goods purchased by him remotely. Let's say in an online store.

But the same restrictions apply to virtual purchases. Seals and labels should not be torn off, the thing should not be used. And, of course, the presentation of the product cannot be lost.

department type

Defining legislation

But what is it? There is no deciphering of the concept of "presentation" in Russian legislation. Lawyers consider this a serious gap.

The buyer often cannot achieve his goal due to the fact that they and the seller have different opinions about the preserved presentation. What it is, you can find out only by resorting to common sense.

Often, lawyers are helped by a deep analysis of regulatory documents on consumer protection andsellers, distributors. But, you see, not every buyer will study a lot of legal literature for the sake of returning a souvenir or toy.

lost trade dress

Packaging counts?

It is an indisputable fact that only the manufacturer gives the product a marketable appearance. But by no means a supplier or seller. And disputes, just the same, sometimes arise about a torn, opened package of goods. Cut labels, exposed factory seals - this is also a stumbling block in such disputes.

On the one hand, the position of the buyer is clear: he could not inspect, test the purchase without opening the box, without releasing the thing from the seals. But the seller's answer is also justified. How will he sell a product with broken seals? Does the buyer want to purchase equipment in an already opened, crumpled box? These are pretty obvious signs of use. It is unlikely that the seller will be able to sell such a thing at the same price.

You can understand which side is right here if you sensibly figure out whether, in a particular case, the packaging is part of the presentation of any product. Therefore, we will consider several ways to solve the problem.

commodity appearance

Packaging - for shipping

Many products are salable even after their packaging has been torn or damaged.

A vivid example: you bought a dress, it was packed in a bag. At home, you opened the package, tried on the item and noticed that it clearly did not suit you in certain parameters, you got excited with the purchase.

In that casethe seller must take the item back if you have not torn off the labels and seals. A torn package in this case will not be evidence that the presentation is lost. For another buyer, the seller may well pack this dress in a different bag or other packaging.

Packaging is value

Now the situation is reversed. You choose an expensive vase as a gift for a loved one for a big celebration. Of course, I also want to pick up the presentation packaging in unison with the event. You get a vase that comes with a beautiful handmade gift box.

However, at home you will find out that another guest has already prepared the same gift for the birthday boy. Your decision is to return this present and choose another one. But on the way the box is crushed. Seeing this, the seller refuses to take the item back. And he will be absolutely right.

In this case, gift wrapping is a component of the presentation of the vase. It is unlikely that another buyer will want to give someone a present in a crumpled box. The seller, having accepted the goods from you, will have to sell it already without a box, at a reduced price. The return of products in that case will be far from equivalent. Therefore, the truth in this case is up to the seller.

presentation of products

Reusable packaging

There are also types of products that you definitely need to test, include, use before determining that they really suit you. To do this, of course, you must first open the package.

For example, you purchased a phone in a virtual store. With its characteristicsyou are familiar only on the basis of the documentation and information specified on the seller's website. In this case, you do not have the opportunity to test a similar product from the storefront.

But when checking the phone options, you notice that the quality of the camera shooting does not suit you, the speaker of the device is quiet. How to return it to the seller, because the package has already been opened?

As for electronics, household appliances, they come in "reusable" boxes. That is, calculated not for one opening / closing. If you opened it carefully, leaving no visible damage, then this is by no means a reason for refusal.

have a trade dress

Impossible without damage

A more difficult question regarding the packaging of equipment, which is objectively impossible to open without damaging it. Here, damage to the container will also not be sufficient grounds for refusing to return. After all, without opening the box, you would not be able to check the characteristics of a smartphone, TV, vacuum cleaner.

The acquisition of technology is also fraught with the fact that its testing is impossible without breaking seals, removing holograms, protective films. Therefore, there are so many cases when sellers do not take back electronic devices that are not suitable for the buyer due to "damaged presentation".

The best option

If you are buying a complex technical, electronic device and are afraid that after its direct testing it may not suit you, lawyers advise purchasing such a product directly from the manufacturer.

Why? The manufacturer of equipment has all the conditionsin order to put new seals, protective films, pack the product in a new branded box. Why damage to the above can not be the reason for the refusal of a return. But a retailer who purchases the same phones at wholesale bases and warehouses no longer has such an opportunity.

concept of trade dress

If the seller insists…

If the seller stubbornly insists that you ruined the presentation of the purchase, you can try to get the truth, based on Art. 12 POZPP. The link here is that when selling the goods, the seller did not provide complete information about its properties.

In most cases, such a reason is enough for the buyer to take back the wrong product, return the money for it.

Court decision

Did you decide to bring the case of non-return of goods due to damage to the presentation to the court? There is no guarantee that here you will definitely be helped to achieve your goal. After all, as we have already noted, the legislation does not give a clear definition of what is called "trade dress".

Therefore, much depends on the position of the judge on this matter. If his views are close to yours, then the case will be decided in your favor.

But still there are many ways to solve the problem peacefully:

  • Offer the seller to exchange the unsuitable item for a similar one, but without the box. In this container, he will be able to pack the goods instead of the one you damaged.
  • Agree to a refund slightly less than the cost of the item. The seller can use the difference to restore the packaging. Agree it's betterthan to be left with something completely inappropriate for you.
  • preserved trade dress

Summarize all that has been said. Before buying an expensive item, be sure to find out what the return conditions are in this store. For example, IKEA accepts unsuitable goods within 365 days from the date of purchase, even in torn packaging. And there are shops where you won't take back the wrong phone, even if you tear the sticker on the lid of the box.

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